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January 2, 2003


The opinion of the court was delivered by: Garaufis, United States District Judge.


Plaintiff Howard Norton brings this action under 42 U.S.C. § 1983, alleging that the above-captioned Defendants violated his due process rights when they revoked his right to maintain a legal nonconforming use of his property without notice and an opportunity to be heard. The parties have filed cross motions for summary judgment. For purposes of efficiency, I consider these motions together.


The following facts are undisputed unless otherwise noted. Plaintiff is the owner of a house (the "Premises") in Central Islip which was converted by previous owners into a twofamily dwelling in 1933. (Memorandum of Law In Support of Plaintiff's Motion for Summary Judgment ("Pl. Mem."), at 2.) At the time the original improvements were made, the two-family use was maintainable as a matter of right under the laws of the Town of Islip (the "Town"). (Id. at 3.) Sometime after 1933, the Town adopted an ordinance that zoned the Premises in an area restricted to single-family detached dwellings. (Id.) However, it also issued a letter on April 27, 1965, recognizing the two-family dwelling as a legal non-conforming use.*fn1 (Id.)

On November 21, 1986, Plaintiff purchased the Premises in reliance upon a certificate of occupancy ("C/O") in the Town's records that certified the Premises as a legal nonconforming two-family dwelling.*fn2 (Id. at 4.) After the purchase, a Town official advised Plaintiff that he needed to obtain a rental permit in order to rent the Premises. (Id. at 4-5.)

On March 23, 1988, Plaintiff submitted an application to the Town for a rental permit. (Pl. Mem., at 5.) In response, the Town issued a barrage of contradictory signals regarding Plaintiff's nonconforming use. On April 13, 1988, the Town issued a new C/O certifying the Premises' status as a legal nonconforming two-family dwelling.*fn3 (Declaration of Thomas Costa in Support of Plaintiff's Motion for Summary Judgment ("Costa Decl."), Ex. G.) However, the Town denied the application for a rental permit and also sent a brief letter dated May 14, 1988 to Plaintiff informing him that the Town "had studied your file and has determined that you must go before the Board of Appeals, with regard to your non-conforming use. I suggest you file an application at the Permit counter at the earliest possible date." (Declaration of Timothy Shea in Support of Defendants' Motion for Summary Judgment ("Shea Decl."), Ex. K.) Following the issuance of that letter, the Town again issued at Plaintiff's request two C/O's on May 23, 1988 and October 28, 1988, certifying the Premises as a legal nonconforming two-family dwelling. (Pl. Mem., at 5.) Each C/O stated:

This certifies that the above property contains the following improvements which conform substantially with the terms and requirements of the New York State Building Code and the Town of Islip Zoning Ordinance at the time of construction and that the Premises may be occupied for the purpose as stated: Two Family Dwelling (nonconforming use). . . . (Shea Decl., Ex. W.)

Each C/O also carried a notation at the bottom providing:

This certificate will be null and void if the improvements are altered in any manner or additions are made thereto without authorization from the Town of Islip Division of Building. (Id.)

Although it appears that the Town had doubts about the continuing validity of Plaintiff's nonconforming use, it is clear that the Town took no official action to revoke the nonconforming use status. Nor did Plaintiff initiate any proceedings with the Board of Appeals. Instead, Plaintiff commenced in September 1988 an Article 78 proceeding seeking to compel the Town to issue a rental permit. (Id.) During these proceedings, the Town justified its denial of Plaintiff's rental application on the ground, among others, that the Premises had lost its status as a nonconforming use after a fire damaged the home in 1984 and prompted the previous owners to leave it vacant for over a year. As a basis for this argument, the Town cited § 68-15 of the Town Code, which provides:

Discontinuance of any non-conforming use for a period one (1) year or more terminates such non-conforming use of a structure or premises, and thereafter said structure or premises shall not be used, except in conformity with provisions of this ordinance.

In making this argument, the Town acknowledged that it had not officially revoked Plaintiff's nonconforming use and that the validity of the use still needed to be determined by the Town's Zoning Board of Appeals. (Id.) The Supreme Court of New York denied Plaintiff's Article 78 petition, but offered no opinion as to the status of the Premises' legal nonconforming use. (Shea Decl., Ex. S.) Months later, on January 3, 1990, the Town again issued at Plaintiff's request a C/O certifying the Premises' established status as a legal nonconforming two-family dwelling. (Pl. Mem., at 4.)

During the period between 1989 and 1997, the Town never initiated any administrative proceeding before the Zoning Board of Appeals or commenced any other proceeding to terminate the nonconforming use. Nor did the Town ever formally notify Plaintiff that his property's legal nonconforming use had been terminated. Indeed, up to the present time, the Premises continues to be annually assessed and taxed by the Town as a legal two-family residence. (Id.)

On March 20, 1997, seven years after the conclusion of the Article 78 proceeding, the Town served Plaintiff with an Accusatory Instrument charging him with violating § 68-40 of the Town Code, which states "No occupancy or use shall be made of land or a building that is not consistent with the last-issued certificate of occupancy for such building or use of land unless a permit is secured." (Id. at 6-7.)*fn4

During discovery for the criminal proceeding, Plaintiff requested the last-issued C/O, and in response the Town's Director of Building and Housing issued a new C/O for the Premises dated October 21, 1997 that included the following revoking notations:

* Fire to Structure 26 Mar 84 Premises Vacated Repaired Fr Damage Permit Required Prior to Reoccupancy
* Rental permit for two-family DENIED 23 Mar 88 Non-conforming use of two-family lost due to non-use in excess of one consecutive year and failure to apply for repair permits. Denial sustained by the SCS court 27 Feb 89. Withdrawal from Court of Appeals 23 Mar 90.

(Id. at 7.)

Plaintiff later learned during discovery in this § 1983 action that the Town's Commissioner of Building and Engineering added the above determinations to Plaintiff's 1990 C/O shortly after that C/O was issued. The notations were made without giving Plaintiff notice or an opportunity be heard.

Plaintiff filed this § 1983 action in October, 1998, seeking (1) monetary damages, (2) attorneys fees, (3) a declaratory judgment recognizing the 1990 C/O as the last validly issued C/O for his premises and declaring that the Town's criminal prosecution of Plaintiff is unconstitutional, and (4) an injunction against Town officials from taking further action to punish or prohibit Plaintiff from using the Premises as a two-family dwelling. (Pl.Compl., ¶ 49.) In October 2000, Plaintiff and the Town entered into a stipulation withdrawing Plaintiff's claim for monetary damages. The stipulation was made on condition that the Town delay the criminal proceedings against ...

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